Ethics Opinion 279

Availability of Screening as Cure for Imputed Disqualification

* [NOTE: See how Opinion 279 has been substantively affected by the amendments to the D.C. Rules of Professional Conduct that became effective on February 1, 2007]

Screening of a disqualified lawyer can cure imputed disqualification of her law firm only where the disqualified lawyer (1) was not a lawyer when involved in the previous matter on behalf of the now-adverse party, (2) was a government employee (including volunteer service in certain District of Columbia offices) when involved in the related representation, or (3) acquired information regarding the now-adverse party in connection with a prospective client who did not become a client. Even where available, a screen is effective only if established in a timely manner.

Applicable Rules

Rule 1.7 (Conflict of Interest: General Rule)

Rule 1.8(b) (Gifts to Lawyers Not Related to Donor)

Rule 1.9 (Conflict of Interest: Former Client)

Rule 1.10 (Imputed Disqualification: General Rule)

Rule 1.11 (Successive Government and Private Employment)

Rule 2.2 (Intermediary)

Inquiry The District of Columbia Rules of Professional Conduct disqualify an individual lawyer from participating in a matter in a number of circumstances. Under many of these circumstances, the disqualification of an individual lawyer is imputed to all the other lawyers in that lawyer’s firm. The Committee has received numerous inquiries as to when, if ever, such imputed disqualification can be cured or avoided by the erection of a screen (sometimes referred to as an “ethical wall”) between the disqualified individual lawyer and the matter in question.

Discussion We address below the circumstances in which individual lawyers are disqualified,1 the subset of circumstances in which such disqualification is imputed to the lawyer’s entire firm, the three instances where imputed disqualification can be cured by screening, and the requisites of such a screen.

1. Individual Lawyer Disqualification An individual lawyer is disqualified from participating in a matter where—

(1) the interests that the lawyer would advance on behalf of one client conflict, or are likely to conflict, with those of another existing client or of the lawyer, Rule 1.7, D.C. Rules of Prof. Conduct (hereinafter “ D.C. Rule __”);2
(2) the representation would involve preparation of an instrument giving the lawyer or her relative a substantial gift or legacy from a client who is not her relative, D.C. Rule 1.8(b);
(3) the lawyer’s opposing counsel is her parent, child, sibling, or spouse, D.C. Rule 1.8(b);
(4) the interests that the lawyer would advance on behalf of one client are materially adverse to those of the lawyer’s former client and the matter is the same as, or substantially related to, a matter in which the lawyer represented that former client, D.C. Rule 1.9;
(5) the matter is the same as, or substantially related to, a matter involving a specific party or parties in which the lawyer participated while a government employee or a volunteer in several D.C. government offices, D.C. Rules 1.11(a), (h);
(6) the lawyer participated personally and substantially as a neutral arbitrator in the same matter, D.C. Rule 1.12;
(7) the representation will result in a violation of law (including the Rules of Professional Conduct), D.C. Rule 1.16(a)(1);
(8) the proposed representation is as an intermediary between two or more clients and one or more of the conditions in Rule 2.2(a) cannot be met; or
(9) the lawyer is likely to be a necessary witness at trial, in which case the lawyer, with limited exceptions, is disqualified only from serving as an advocate at trial. D.C. Rule 3.7; D.C. Bar Ethics Op. 228 (1992).
Some of these causes for disqualification can be waived by clients after full disclosure of the existence, nature, and possible consequences of the conflict or other impairment. E.g., D.C. Rule 1.7(c); D.C. Rule 1.9 & Comment [3].

2. Imputed Disqualification—Currently Associated Lawyers Where currently associated lawyers3 are involved and an individual lawyer is disqualified under Rule 1.7, 1.8(b), 1.9, or 2.2, the disqualification is imputed to the lawyer’s entire firm.4 D.C. Rule 1.10(a) & Comment [6]. Imputed disqualification thus does not extend to all the individual disqualification situations set out above. In the remaining situations listed, there is no imputation of the individual lawyer’s disqualification to the rest of the firm, though the voluntary erection of a screen may help ensure that a disqualified individual lawyer does not inadvertently participate in, or disclose confidences or secrets relating to, a matter from which she is disqualified.

Disqualification of an individual lawyer as trial counsel because that lawyer is likely to be a necessary witness, see D.C. Rule 3.7(a); D.C. Bar Ethics Op. 228 (1992), is imputed to the lawyer’s firm only if the individual lawyer also is disqualified by reason of conflict of interest Rule 1.7 or 1.9 (for example, the individual lawyer is expected to give testimony that is adverse to the client). D.C. Rule 3.7(b).

3. Imputed Disqualification—Lawyers Changing JobsPrivate sector job to private sector job. Imputed disqualification also may occur when a lawyer moves from one private sector position to another. First, a law firm with which a disqualified lawyer is newly associated is disqualified in a matter where the disqualified lawyer personally represented the adverse party while a lawyer at a different firm, and the disqualified lawyer actually acquired confidences or secrets of the adverse party in that capacity that are material to the matter at the new firm, and that matter is the same as, or substantially related to, the matter at the former firm. D.C. Rule 1.10(b) & Comments [16], [19].5 Second, where the individual lawyer subject to disqualification has left a law firm, that firm is disqualified in a new matter that is the same as, or substantially related to, the matter in which the departed lawyer represented the firm’s now adverse former client. D.C. Rule 1.10(c) & Comment [20]. Where the disqualified lawyer was a nonlawyer at the time of the prior representation, there is no imputed disqualification, D.C. Rule 1.10(b) & Comment [21], but a screen must be established between the disqualified lawyer and the other lawyers in the firm, D.C. Bar Ethics Op. 227 (1992). In the case of both currently associated lawyers and lawyers changing jobs, imputed disqualification under Rule 1.10 can be waived “under the conditions stated in Rule 1.7” (for example, full disclosure of the conflict and potential adverse consequences thereof). D.C. Rule 1.10(d).

Public sector to private sector. When the move is from a public sector to a private sector job, imputed disqualification of the private firm occurs where the disqualified lawyer participated personally and substantially while a public officer or employee (including work as a volunteer for the D.C. Corporation Counsel or the D.C. Financial Responsibility and Management Assistance Authority)6 in the same or a substantially related matter involving a specific party or parties, even if the private firm is not adverse to the lawyer’s former agency. D.C. Rule 1.11. Imputed disqualification does not occur, however, if the disqualified lawyer’s involvement with the now-adverse party was solely as a judicial clerk. D.C. Rule 1.11(b) & Comment [6]. There accordingly is no screening requirement in such a situation, D.C. Rule 1.11, Comment [6], though erection of a screen nevertheless may be prudent.

4. Screening as a Cure for Impaired Disqualification7 Screening over the objection of an affected client generally cannot cure a firm’s imputed disqualification where the disqualified individual attorney was in private practice when the disqualifying representation occurred.8 Screening typically is available where the disqualified individual lawyer was a government employee when the disqualifying representation occurred.

Disqualification under Rule 1.10. With two exceptions, screening does not avoid imputed disqualification under Rule 1.10. The first exception occurs where:

the individual lawyer’s disqualification results solely from the fact that the lawyer consulted with a potential client for the purpose of enabling that potential client and the firm to determine whether they desired to form a client-lawyer relationship, but no such relationship was ever formed.

To avoid disqualification of the entire firm in such a situation, the firm:

must take affirmative steps—as soon as an actual or potential conflict is suspected—to prevent the personally disqualified lawyers from disseminating any information about the potential client that is protected by Rule 1.6, except as necessary to investigate potential conflicts of interest, to any other person in the firm, including non-lawyer staff.

The second circumstance in which screening cures imputed disqualification under Rule 1.10 is where the disqualified individual was not a lawyer when she acquired the confidences or secrets of the now-adverse party. D.C. Rule 1.10(b) (cross-referencing D.C. Rule 1.6(g) & Comment [21]). Screening is required whether the disqualified individual subsequently has become a lawyer, D.C. Rule 1.10(b) & Comment [21], or remains a nonlawyer (e.g., a summer law clerk, a paralegal, or a clerical employee), D.C. Bar Ethics Op. 227 (1992) (citing ABA Informal Op. 88-1526 (1988)). In the latter case, screening is required to protect client confidences and secrets. In the former case, issues regarding loyalty are present as well.

Rule 1.10 does not indicate what specific actions constitute a sufficient screen. Our Opinion 227 suggests the use of one or more of the techniques that are discussed later in this opinion. A screen created under this exception generally must be erected at or before the time the conflict—whether caused by the arrival of a lateral lawyer or nonlawyer or by the acceptance of a new matter—occurs. LaSalle Nat’l. Bank v. County of Lake, 703 F.2d 252, 259 (7th Cir. 1983); Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir. 1983); Nelson v. Green Builders, Inc., 823 F. Supp. 1439, 1451 (E.D. Wis. 1993).

Disqualification Under Rule 1.11. Disqualification of a former government employee, including someone who worked as a volunteer for the D.C. Corporation Counsel or the D.C. Financial Responsibility and Management Assistance Authority, is imputed to her firm only upon failure to follow the requirements set out in paragraphs (c) through (f) of Rule 1.11. D.C. Rule 1.11(b) & Comment [3]. First, the personally disqualified lawyer must be “screened from any form of participation in the matter . . . and from sharing in any fees resulting therefrom.” D.C. Rule 1.11(c). This “does not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement,” but it does prohibit a firm from “directly relating the attorney’s compensation in any way to the fee in the matter in which the lawyer is disqualified.” D.C. Rule 1.11 Comment [11]. That is, where a lawyer’s percentage share of a firm’s profits is determined or decided upon after the fact, the total firm profits need not be recalculated by subtracting the fee for the particular matter but the determination of her percentage should not take that fee into account.

Second, the disqualified lawyer and her firm must notify the lawyer’s former agency and the parties to the matter in writing before the firm begins the representation. D.C. Rule 1.11(d) & Comment [6]. The individually disqualified lawyer must state that she will not participate in, discuss with any other lawyer in her firm, or share in any fees for, the matter. D.C. Rule 1.11(d)(1). One other firm lawyer must state that all affiliated lawyers are aware of the screen and must “describ[e] the procedures being taken to screen the personally disqualified lawyer.” D.C. Rule 1.11(d)(2). Paragraphs (e) and (f) prescribe an alternate procedure for instances where the client “requests in writing that the fact and subject matter of a representation” not be disclosed as required by paragraph (d).

As with the second exception under Rule 1.10, a Rule 1.11 screen should be in place not later than the time the conflict—whether occasioned by the arrival of a lateral lawyer or nonlawyer or by the acceptance of a new matter—occurs. D.C. Rule 1.11 Comment [7]; LaSalle Nat’l Bank, 703 F.2d at 259; Schiessle, 717 F.2d at 421; Nelson, 823 F. Supp. at 1451.

“Compliance with the Rules of Professional Conduct does not necessarily constitute compliance with all of the obligations imposed by conflict of interest statutes or regulations.” D.C. Rule 1.11 Comment [13]. The Rules note the potential applicability of such other provisions of law at 18 U.S.C. §§ 207 and 208 to the conduct of former government employees. D.C. Rule 1.11 Comment [13]. Some agencies also have their own separate rules. E.g., 16 C.F.R. § 4.1(b) (1997) (FTC).

5. Particular Elements of a Screen Beyond the requirements of Rule 1.11(d)(1) that a disqualified individual lawyer not participate in the matter, discuss the matter with her colleagues, or share in the fees for the matter, neither any reported decision of the District of Columbia Court of Appeals11 nor the D.C. Rules of Professional Conduct12 specify the particular elements of a screen when one is required or permitted under the Rules.

Our Opinion 227 and court decisions elsewhere, however, suggest that a screen should prohibit (1) involvement in the matter by the individually disqualified lawyer, (2) discussion of the matter between the individually disqualified lawyer and any firm personnel involved in the representation, (3) access by the disqualified lawyer to any files (including electronically stored files) of the matter from which she is screened, and (4) access by the lawyers working on the matter to any files of the disqualified lawyer relating to the matter. See, e.g., LaSalle Nat’l Bank, 703 F.2d at 259; Armstrong v. McAlpin, 625 F.2d 433, 442-43 (2d Cir. 1980) (en banc), vacated on other grounds, 449 U.S. 1106 (1981); Kesselhaut v. United States, 214 Ct. Cl. 124, 555 F.2d 791 (Ct. Cl. 1977); Rule 1.10(e), Mass. Rules of Prof. Conduct (eff. Jan. 1, 1998); Rule 1.10(e), Rules of Prof. Conduct, U.S. Dist. Ct., N.D. Ill.;13 D.C. Bar Ethics Op. 227 (1992). In addition, there should be written notification to all personnel of the firm and to the clients of the fact and elements of the screen. Kala, 81 Ohio St. 3d at 10, 688 N.E.2d at __; see Rule 1.10(e), Mass. Rules of Prof. Conduct (eff. Jan. 1, 1998); D.C. Bar Ethics Op. 227 (1992). In appropriate circumstances, such as where the disqualified lawyer works near those handling the matter, the file protection element can include labeling files to reflect the access prohibition, see D.C. Bar Ethics Op. 227 (1992), or even maintaining files in a secure location, e.g., Kesselhaut, 214 Ct. Cl. at 127-28, 555 F.2d at 793 (files maintained in locked cabinet with keys controlled by two partners and issued only on a need-to-know basis); In re Del-Val Financial Corp. Securities Litigation, 158 F.R.D. 270, 273 (S.D.N.Y. 1994) (locked, limited-access room).14

March 1998

1. This opinion does not address situations where an individual lawyer is not disqualified even though in a conflict situation. See, e.g., D.C. Rule 1.7(d) (midstream conflicts); D.C. Bar Ethics Op. 272 (1997) (situation wherein representation of one client can be terminated to avoid conflict with another).

2. Disqualification for this reason can include instances where the lawyer’s inability (because of the structures of Rule 1.6) to impart or make use of secrets or confidences gained from another client or potential client substantially inhibits the lawyer’s ability to represent her client. See D.C. Rule 1.10 cmt. [7]; D.C. Bar Ethics Op. 237 (1992).

3. The Rules regarding imputed disqualification distinguish between lawyers and nonlawyers, e.g., D.C. Rule 1.10(b); D.C. Rule 1.6(g); D.C. Bar Ethics Op. 227 (1992), but do not distinguish among partners, associates, and of counsel. For a discussion of imputation where the disqualified lawyer is a temporary or contract lawyer, see our Opinion 255.

4. Outside the private practice context, a “firm” includes the legal department of a corporation or other organization and the lawyers in a given unit of a legal services organization (though not necessarily the entire legal services organization), but not necessarily the entire government or even an entire government agency. D.C. Rule 1.10 cmts [1]-[4].

5. We address the treatment of this issue under the now-suspended D.C. Code of Professional Responsibility in our Opinions 164 (1986) and 174 (1986).

6. Rule 1.11 applies regardless of whether the government position was nominally as a lawyer.

8. This is the rule in most United States jurisdictions. Task Force on Conflicts of Interests, Section on Business Law, A.B.A., Conflicts of Interest Issues, 50 Bus. Law. 1381, 1402 (1995). A recent survey suggests that the contrary probably is the case only in Illinois, Michigan, Oregon, Pennsylvania, and Washington, and possibly is the case in Louisiana, Ohio and Tennessee. Thomas D. Morgan & Ronald D. Rotunda, 1998 Selected Standards on Professional Responsibility 143-53. Massachusetts recently altered its rules to permit screening where the lateral arrival (a) “has no material information protected by Rule 1.6 or Rule 1.9” or (b) neither had substantial involvement nor acquired substantial material information about the matter while with her previous firm. Rule 1.10(d), Mass. Rules of Prof. Conduct (eff. Jan. 1, 1998). The draft Restatement of the Law Governing Lawyers would permit screening where the client confidences or secrets communicated to the individually disqualified lawyer are “unlikely to be significant” in the new matter. Restatement of the Law Governing Lawyers § 204(2) & cmt. d (Prop. Final Draft No. 1, 1996). The Comments concede that this is not the majority rule, id. cmt. d., but a Reporter’s Note contends that “[t]he developing case law . . . seems to be consistent” with the proposed Restatement rule. Id. reporter’s note to cmt. d.

9. This exception also is available where the individually disqualified lawyer acquired her knowledge while associated with another law firm. D.C. Rule 1.10(b) (eff. Nov. 1, 1996).

10. The current draft of the Restatement would permit screening in this context. Restatement of the Law Governing Lawyers, § 27(1)(b) (Prop. Final Draft No. 1, 1996).

11. One decision suggests that where a screen is permitted, the individually disqualified lawyer must be screened “from participation in counseling and compensation arrangements.” Committee for Washington’s Riverfront Parks v. Thompson, 451 A.2d 1177, 1192 (D.C. 1982). A United States District Court ruling ordered the disqualified lawyer not to “discuss with [his partner representing the codefendant] any information” that the disqualified lawyer received from his former client. United States v. Childress, 731 F. Supp. 547, 554 (D.D.C. 1990).

12. Cmt. [9] to Rule 1.10 requires that protected confidences and secrets not pass in either direction between the disqualified lawyer and others in the firm but does not offer further particulars.

13. This local rule also requires that the disqualified lawyer be “isolated from all contacts with the client or any agent, officer or employee of the client and any witness for or against the client.” Rule 1.10(e)(2), Rules of Prof. Conduct, U.S. Dist. Ct., N.D. Ill.